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ETHICAL ISSUES for PLAB 1

Mental capacity Act

The Mental Capacity Act (2005) provides a statutory framework to empower and protect vulnerable
people who are not able to make their own decisions. It makes it clear who can take decisions, in which
situations, and how they should go about this. It enables people to plan ahead for a time when they may
lose capacity. The Mental Capacity Act applies to people aged 16 and over.

Principles of the Act

The Act is underpinned by five key principles:

 A presumption of capacity: every adult has the right to make his or her own decisions and must
be assumed to have capacity to do so unless it is proved otherwise.
 The right for individuals to be supported to make their own decisions: people must be given
all appropriate help before anyone concludes that they cannot make their own decisions.
 That individuals must retain the right to make what might be seen as eccentric or unwise
decisions.
 Best interests: anything done for or on behalf of people without capacity must be in their best
interests.
 Least restrictive intervention: anything done for or on behalf of people without capacity should
be the least restrictive of their basic rights and freedoms.

Assessment of mental capacity is specific for each individual decision at any particular time. People are
considered to lack capacity if they have an impairment which causes them to be unable to make a
specific decision. The person should be able to understand, retain and weigh the information provided
and communicate their decision.
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Assessing lack of capacity

 The Act sets out a single clear test for assessing whether a person lacks capacity to take a
particular decision at a particular time.
 It is a 'decision-specific' test. No one can be labelled 'incapable' as a result of a particular medical
condition or diagnosis.
 A lack of capacity cannot be established merely by reference to a person's age, appearance, or any
condition or aspect of a person's behaviour which might lead others to make unjustified
assumptions about capacity.
 To test if the person has capacity:
 Does the person have an impairment of the mind or brain, or a disturbance of mental
function?
 If so, does that impairment or disturbance mean that the person is unable to make the
decision in question at the time it needs to be made?
 To have capacity to make a decision, someone must be able to:
 Understand the information relevant to the decision.
 Retain the information.
 Use that information as part of the process of making the decision.
 Communicate his/her decision either by talking, signing, or any other means.

Best interests

 Everything that is done for or on behalf of a person who lacks capacity must be in that
person's best interests.
 Carers and family members have a right to be consulted.
 All decisions must be made in the best interest of that person:
 Involve the person who lacks capacity.
 Be aware of the person's wishes and feelings.
 Consult with others who are involved in the care of the person.
 Do not make assumptions based solely on the person's age, appearance, condition or
behaviour.
 Consider whether the person is likely to regain capacity to make the decision in the
future.
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Advance care planning

The Mental Capacity Act introduced advance care planning, giving a person the right to make
decisions about their healthcare treatment in the future, for a time when they may no longer have
the capacity to make such decisions for themself.

 Advance care planning can only be made by people aged 18 years or older and considered to have
mental capacity.
 Under advance care planning, any treatment can be refused, except for those actions needed to
keep a person comfortable - eg, warmth, shelter and offering food or water by mouth.
 Wishes to have certain treatments may be expressed in advance which must be taken into account;
however, they do not have to be followed.
 An advance care plan carries the same weight as decisions made by a person with capacity and
must be followed. Therefore, best interests do not apply.
 Advance care plans may be verbal, except those about life-sustaining treatment which must be in
writing and signed by the patient and a witness, and include a statement that the decision is to
apply even if life is at risk.
 The advance care plan becomes invalid if the decision is withdrawn or amended when the person
still had capacity (or even if there have been any actions suggesting they changed their mind after
making the advance decision), or if there are 'lasting powers of attorney' with powers to make the
same decision after the advance decision was made.
 The advance care plan must apply to the specific circumstance in question.
 Going against a valid and applicable advance care plan can result in claims for battery or criminal
charges of assault.

Lasting powers of attorney

 The Act allows a person to appoint an attorney to act on their behalf if they should lose capacity in
the future.
 The Act allows people to let an attorney make financial, property, health and welfare decisions.
 The designated attorney must be aged 18 years or older.
 The lasting powers of attorney only come into force once the person has lost capacity and the
lasting powers of attorney must be registered with the Office of the Public Guardian.[2]
 The person making the lasting powers of attorney must have capacity when they sign a written
document confirming the powers and limitations of the powers of attorney.
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Independent Mental Capacity Advocate (IMCA)

An IMCA is someone appointed to support a person who lacks capacity but has no one to speak for
them. The IMCA makes representations about the person's wishes, feelings, beliefs and values at the
same time as bringing to the attention of the decision-maker all factors that are relevant to the decision.
The IMCA can challenge the decision-maker on behalf of the person lacking capacity if necessary.

Confidentiality
Patient’s have a right to expect that doctors will ot disclose any personal information unless
they give permission

When A doctor can breach confidentiality ?

Generally speaking, if the patient gives consent for that or Information needed to
be disclosed in the patient's best interest or Public best interests

Examples:

- In presence of notifiable diseases e.g TB

- If a judge or court requested the information

- In situations where another individual, or a community, is at risk of serious

harm due to the patient’s condition or behavior (e.g. at risk of serious
communicable diseases or crime,)examples :HIV patient who is knowingly
infecting others ,patient is a sex offender etc.

- The police are required to further investigate a case whereby a member of

the public is armed with, and has used, a gun or knife in a serious attack

DNAR ( Do not attempt resuscitation)

- A DNAR form is a document issued and signed by a doctor, which tells the medical
team/other paramedics staff not to attempt cardiopulmonary resuscitation (CPR) in
case of cardiac arrest.
- The decision is made by the most senior physician looking after a patient after a
comprehensive assessment of the overall clinical picture.
Factors that help a clinical to decide on resuscitation :
1- Functional level and quality of life : Poor physiological reserve will make it
unlikely for CPR to be successful . eg- 60 male with advanced COPD who cannot
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walk more than 50 yards due to SOB

2- Co-morbidities : end stage cancer, severe COPD , sever Heart failure ,metastatic
disease …..etc
3- Patient wishes : eg if the patient already has a legal document stating that he does
not want to be resuscitated ( advanced directive )

DNAR is a medical decision . The patient /or family should be informed about it and this
should be communicated very clearly. They are not here to decide, they cannot ask you to
resuscitate if you think it is inappropriate
- If a patient with capacity refuses CPR, you respect his wishes .
- If a patient lacking capacity has a valid and applicable advance decision refusing
treatment (ADRT), specifically refusing CPR, this must be respected ( a valid, signed
DNAR)
- The decision for not to resuscitate does not need a consent from the patient or family,
however, all efforts should be made to involve them in the decision.
- Patient or family can refuse treatment, but they cannot demand treatment
( i.e asking you to do CPR ), if the medical team thinks it is inappropriate.
- When disagreement between the medical team with the patient/or family arises, a
second opinion should be sought.

Ethical questions for PLAB 1

1) What is the minimum age for consent ?

A) 14 years
B) 15 years
C) 16 years
D) 18 years

2) A patient with terminal cancer on morphine asks you to help him end his life by
giving him lethal dose of morphine
A) Use lethal dose Morphine to end his life
B) Use some other medication to end his life
C) Suggest it some other way to end his life
D) Tell him this not possible but assure him that there are effective ways to deal with
pain.

3) A man with dementia has a nodule on his scalp. He wants to remove it to improve
memory and his daughter refuses surgery.
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A) Refer patient to psychiatry to asses capability to consent

B) Refuse to do the surgery
C) Agree with the daughter because she is the one who has to decide for her mother.

4) 14 year old girl who asks for oral contraception. Her boyfriend is a school teacher.
A) Tell her that you can’t prescribe because she is child
B) Call her parents and tell them
C) Report to police
D) Report to local safe guards

5) A patient who just had a TIA. What should he do for driving

A) Refrain completely
B) Only drive when accompanied
C) Resume normally
D) Inform DVLA

Minimum age for consent

1) What is the minimum age for consent ?

E) 14 years

F) 15 years

G) 16 years

H) 18 years

Consent
General principles

 When obtaining consent, the doctor must establish whether the child is legally competent
(in legal terms, 'has capacity' to give consent).
 All people aged 16 and over are presumed in law to have the
capacity to consent to treatment unless there is evidence to the
contrary.
 If the child is deemed not legally competent, consent will need to be obtained from
someone with parental responsibility, unless it is an emergency.
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 Emergency treatment can be provided without consent to save the life of, or prevent
serious deterioration in the health of, a child or young person.
 The legal position differs, depending on whether the young person is aged over or under 16
(see below).

Assessing competence

It should not be assumed that children with learning difficulties are unable to take competent
decisions, which can be aided by presenting them with information in an appropriate way.

If a child is deemed not competent, a person with parental responsibility would need to give consent.

If a child lacks the capacity to consent and consent from someone with parental responsibility is
required, only one individual needs to be approached. However, it is good practice to involve all
those close to the child if possible. If parents cannot agree and disputes cannot be resolved
informally, seek legal advice about whether you should apply to the court.

Once an individual has reached the age of 18, no one can give consent on their behalf. If they are not
competent, clinicians can provide treatment and care, providing this is in their best interests.

Parental responsibility

Parental responsibility includes the right of parents to consent to treatment on behalf of a child when
the child is unable to provide valid consent for himself or herself, provided the treatment is in the
interests of the child.

Those with parental responsibility have a statutory right to apply for access to their children's health
records, although if the child is capable of giving consent, he or she must consent to the access.

The Children Act 1989 outlines who has parental responsibility. This includes:

-A mother always has parental responsibility for her child.

-A father only has this responsibility if he is married to the mother when the child is born or has
acquired legal responsibility for his child by:

- Jointly registering the birth of the child with the mother (since December 2003).

- A parental responsibility agreement with the mother.

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- A parental responsibility order, made by a court.

The child's legally appointed guardian - appointed either by a court or by a parent with parental
responsibility in the event of their own death.

A person in whose favour a court has made a residence order concerning the child.

 Foster parents, grandparents and indeed parents under the age of 16 do not automatically have
parental responsibility. In the latter case, the individual needs to be deemed Gillick competent
(see 'Children under the age of 16', below) before they can give consent on behalf of their
child.
 Where doctors believe that parental decisions are not in the best interests of the child, it may be
necessary to seek a view from the courts, whilst meanwhile only providing emergency
treatment that is essential to preserve life or prevent serious deterioration.
 In England, Wales and Northern Ireland there remains some uncertainty in common law as to
the situation where a competent child under the age of 16 disagrees with the views of those
who have parental responsibility.

Children aged 16 and 17

Once children reach the age of 16, they are presumed in law to be competent. In many respects
they should be treated as adults and can give consent for their own surgical and medical
treatment. The Department of Health recommends that it is nevertheless good practice to
encourage children of this age to involve their families in decisions about their care, unless it
would not be in their interests to do so.

If a competent child requests that confidentiality be maintained, this should be respected unless
the doctor considers that failing to disclose information would result in significant harm to the
child. A child aged 16-18 cannot refuse treatment if it has been agreed by a person with
parental responsibility or the Court and it is in their best interests. Therefore, they do not
have the same status as adults.

Children and young people who lack the capacity to consent

If a child lacks the capacity to consent, you should ask for parental consent. It is usually
sufficient to have consent from one parent. If parents cannot agree and disputes cannot be
resolved informally, you should seek legal advice about whether you should apply to the court.

Young people aged 16 and 17 years

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In England, Wales and Northern Ireland:

Parents can consent to investigations and treatment that are in the young person's best
interests.Treatment can also be provided in the young person's best interests without parental
consent, although the views of parents may be important in assessing the young person's best
interests.

Children under the age of 16

Children in this age group are not deemed to be automatically legally competent to give consent. The
courts have determined that such children can be legally competent if they have 'sufficient
understanding and maturity to enable them to understand fully what is proposed'.

This concept - now known as 'Gillick competency'

A competent child under the age of 16 is insistent that their family should not be involved, their
right to confidentiality must be respected, unless such an approach would put them at serious
risk of harm.

If a young person refuses treatment

Parents cannot override the competent consent of a young person to treatment that you consider
is in their best interests. But you can rely on parental consent when a child lacks the capacity to
consent. In England - the law on parents overriding young people's competent refusal is
complex. You should seek legal advice if you think treatment is in the best interests of a
competent young person who refuses.

You must carefully weigh up the harm to the rights of children and young people of overriding
their refusal against the benefits of treatment, so that decisions can be taken in their best
interests. In these circumstances, you should consider involving other members of the
multidisciplinary team, an independent advocate, or a named or designated doctor for child
protection. Legal advice may be helpful in deciding whether you should apply to the court to
resolve disputes about best interests that cannot be resolved informally.

You should also consider involving these same colleagues before seeking legal advice if parents
refuse treatment that is clearly in the best interests of a child or young person who lacks
capacity, or if both a young person with capacity and their parents refuse such treatment.

Devolving parental responsibility

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 Parents are not with their children 24 hours a day and there are times when parents might
devolve the responsibility to consent to treatment to others - eg, grandparents or
childminders - for certain interventions such as emergency care and treatment of minor
illnesses.
 Such consent does not need to be in writing and the healthcare professional does not need
to consult the parents, unless there is cause to believe parents' views would differ
significantly.
 Where there is no specific agreement between parents and a third party in any given
situation, the third party can give consent, providing it can be justified as being in the best
interests of the child. An example of this would be a teacher accompanying a child to the
Accident and Emergency Department for urgent treatment required after an accident at
school.

Special situations
No one is able to give valid consent

Examples would be a child brought to hospital needing emergency surgery after a road accident, an
unaccompanied asylum seeker, or a child of parents who were not deemed competent to give consent
(eg, drug-dependent or drunk).

In such cases, treatment can be given, providing it is in the child's welfare and the child would come
to significant harm if treatment were withheld.

The clinician disagrees with the parents

 In such cases an application should be made to the court to decide, particularly if life-saving
treatment is required.
 An emergency decision can often be obtained. If this is not possible, the treatment should be
given if it is life-preserving.
 The appropriate medical defence body should be consulted.
 The situation may be reversed in that parents may wish a child to have a treatment which the
clinician may feel is inappropriate. Again, an application for a court decision should be made.
In such cases, the court will sometimes attempt to find a clinician who is prepared to give the
treatment.

Children do not agree with those with parental responsibility

 If the child is competent and wishes to receive treatment, those with parental responsibility
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cannot override them.

 If a competent child is refusing treatment, those with parental responsibility can consent if the
treatment is deemed to be in the child's interests.
 Occasions may arise where children disagree with those with parental responsibility and either
course of action may be deemed reasonable. Such matters often come to court. Courts have the
authority to override the decisions of both the child and those with parental responsibility.

Gillick competency and Fraser guidelines

When we are trying to decide whether a child is mature enough to make decisions,
people often talk about whether a child is 'Gillick competent' or whether they meet the
'Fraser guidelines'.

What do 'Gillick competency' and 'Fraser guidelines' refer to?

Gillick competency and Fraser guidelines refer to a legal case which looked specifically
at whether doctors should be able to give contraceptive advice or treatment to under 16-
year-olds without parental consent. But since then, they have been more widely used to
help assess whether a child has the maturity to make their own decisions and to
understand the implications of those decisions.

In 1982 Mrs Victoria Gillick took her local health authority (West Norfolk and Wisbech
Area Health Authority) and the Department of Health and Social Security to court in an
attempt to stop doctors from giving contraceptive advice or treatment to under 16-year-
olds without parental consent.

The case went to the High Court in 1984 where Mr Justice Woolf dismissed Mrs
Gillick’s claims. The Court of Appeal reversed this decision, but in 1985 it went to the
House of Lords and the Law Lords (Lord Scarman, Lord Fraser and Lord Bridge) ruled
in favour of the original judgment delivered by Mr Justice Woolf:

"...whether or not a child is capable of giving the necessary consent will depend on the
child’s maturity and understanding and the nature of the consent required. The child
must be capable of making a reasonable assessment of the advantages and disadvantages
of the treatment proposed, so the consent, if given, can be properly and fairly described
as true consent." (Gillick v West Norfolk, 1984)

How are the Fraser Guidelines applied?

The Fraser guidelines refer to the guidelines set out by Lord Fraser in his judgment of
the Gillick case in the House of Lords (1985), which apply specifically to
contraceptive advice. Lord Fraser stated that a doctor could proceed to give advice
and treatment:
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"provided he is satisfied in the following criteria:

that the girl (although under the age of 16 years of age) will understand his advice;
- that he cannot persuade her to inform her parents or to allow him to inform the
parents that she is seeking contraceptive advice;
- that she is very likely to continue having sexual intercourse with or without
contraceptive treatment;
- that unless she receives contraceptive advice or treatment her physical or
mental health or both are likely to suffer;
- that her best interests require him to give her contraceptive advice, treatment
or both without the parental consent." (Gillick v West Norfolk, 1985)

How is Gillick competency assessed?

Lord Scarman’s comments in his judgment of the Gillick case in the House of Lords
(Gillick v West Norfolk, 1985) are often referred to as the test of "Gillick competency":

"...it is not enough that she should understand the nature of the advice which is being
given: she must also have a sufficient maturity to understand what is involved."

He also commented more generally on parents’ versus children’s rights:

"parental right yields to the child’s right to make his own decisions when he reaches a
sufficient understanding and intelligence to be capable of making up his own mind on
the matter requiring decision."

What are the implications for child protection?

Professionals working with children need to consider how to balance children’s rights
and wishes with their responsibility to keep children safe from harm.
Underage sexual activity should always be seen as a possible indicator of child sexual
exploitation.
Sexual activity with a child under 13 is a criminal offence and should always result
in a child protection referral.

14 year old girl who asks for oral contraception. Her boyfriend is a school teacher.
A) Tell her that you can’t prescribe because she is child
B) Call her parents and tell them
C) Report to police
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D) Report to local safe guards

If you suspect child maltreatment, you should refer immediately as appropriate to one of three agencies:

1) The local child social services.

2) The Police
3) The NSPCC (National Society for the Prevention of Cruelty to Children)

All three agencies have statutory child protection powers to act immediately to secure the safety of a
child. Where there is no immediate danger, the local child social services would normally be the
referral route.

How to report your concerns

Police

 If you think it is an emergency (the child is at immediate risk of serious harm) then refer the child
immediately to the police (call 999/112/911) and social services for immediate action. Don't put
yourself in danger.
 Police may enter any premises and remove a child to a place of safety for 72 hours.
 Police have child abuse investigation units, which normally take responsibility for investigating
child abuse cases.

Social workers (local authority social services)

 All local authorities have a social services officer permanently on call (including out of hours)
with access to the child protection register. This officer can take referrals if there are concerns
about a child.
 The local authority has responsibility for the safety and welfare of children.

The NSPCC

 Is a voluntary organisation authorised to initiate child protection proceedings.

 Has a national child protection helpline (freephone 0808 800 5000) and a children's helpline
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(Childline, freephone 0800 1111).

Where there is immediate danger to a child, the police have the authority (under the Children's Act) to
enter a house and remove a child for their safety. The police can enter premises and remove a child to a
place of safety for 72 hours. Examples of emergencies are:

 Recent sexual assault (<72 hours ago)

 The child is unprotected and at risk of serious harm.
 Any baby with signs of non-accidental injury.
 all professionals who identify cases of FGM (Female genital mutilation) in girls under the age of
18 during their professional work have a duty to report this to the police.

Local Safeguarding Children's Board (LSCB)

 Following the 2004 Children's Act, each local authority had a statutory responsibility to
establish an LSCB.
 The LSCB has overall responsibility for deciding how the relevant organisations will work
together to safeguard children in its area.
 The LSCB develops local safeguarding policies and procedures and monitors and coordinates
them.
 LSCBs exist in England and Wales.

TIA and DVLA

A patient who just had a TIA. What should he do for driving

A) Refrain completely
B) Only drive when he is accompanied
C) Resume normally
D) Inform DVLA
Car or motorcycle drivers who have had a stroke or transient ischaemic attacks (TIA).

When you need to tell DVLA ?

( You do not always need to tell DVLA if you have had a single TIA or stroke).
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1 You have had more than one recent stroke or TIA

2 One month after the stroke you are still suffering from weakness of the arms or legs,
visual disturbance, or problems with co-ordination, memory or understanding
3 You have had any kind of seizure, unless:
– it happened at the time of the stroke or TIA
or within the following 24 hours and you have never had a seizure, stroke or TIA
before
4 You needed brain surgery as part of the treatment for the stroke
5 A person providing your medical care has said he/she is concerned about your ability
to drive safely
6 You hold a current Large Goods Vehicle (LGV) or Passenger Carrying Vehicle
(PCV) (Group 2) driving licence.
7 If you are not sure whether any of the above apply to you, discuss the matter with
your doctor.
Disability of your arms or legs after a stroke may not prevent you from driving. You
may be able to overcome driving difficulties by driving an automatic vehicle or one
with a hand-operated accelerator and brake.
8 If there are any restrictions on the types of vehicle you can drive, these must be
shown on your driving licence.

2) A patient with terminal cancer on morphine asks you to help him end his life by
giving him lethal dose of morphine
A. Use lethal dose Morphine to end his life
B. Use some other medication to end his life
C. Suggest it some other way to end his life
D. Tell him this not possible but assure him that there are effective ways to deal
with pain.

3) A man with dementia has a nodule on his scalp. He wants to remove it to improve
memory and his daughter refuses surgery.
D) Refer patient to psychiatry to asses capability to consent
E) Refuse to do the surgery
F) Agree with the daughter because she is the one who has to decide for her mother.
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Epilepsy and Driving

Group 1 includes cars and motorcycles

Car drivers and motorcycle riders

Car drivers and motorcycle riders will usually be granted a 3-year licence as long as they:
 have not had an epileptic attack in the last 12 months, unless they have seizures that fall
under one of the concessions
 comply with the advice of their doctor or consultant concerning treatment and check-
ups
Once seizure free for 5 years, drivers will usually be issued a licence valid until they’re 70.

Group 2 includes large lorries (category C) and buses (category D)

Lorry and bus drivers
Lorry and bus drivers will be given a driving licence if they remain seizure free for 10
years and without taking any anti epilepsy medication. The duration of the licence will
depend on the individual medical details of the driver.